Vella v Nergl Developments Pty Ltd & Ors (No. 3) [2021] NSWSC 1352

Vella v Nergl Developments Pty Ltd & Ors (No. 3) [2021] NSWSC 1352

The disputed damages claim about alleged road damage was factually and legally uncertain and did not justify delaying completion of the specific performance relief, registration of the Easement, or removal of the caveats. The caveats should be withdrawn upon execution of the Settlement Deed and s 88B Instrument and compliance with Order (6) of the principal judgment as explained. The s 88B Instrument should include only terms required by the Heads as construed by the Court, not additional restrictions or liabilities proposed by either party merely because they might be reasonable.

Jurisdiction
Australia
Judgment Date
29 October 2021
Procedural Posture
Equity Proceedings Concerning Specific Performance of Heads of Agreement to Settle Litigation and Grant an Easement / Post Appeal Remittal to Settle the Final Form of Orders, Including Removal of Caveats and Form of Settlement Deed and S 88 B Instrument
Outcome
Court settled the approach to instruments required to complete the remedy of specific performance and directed the parties to bring in short minutes of order to give effect to the reasons.
Legal Topics
['specific Performance' 'form of Orders' 'heads of Agreement' 'easements' 'caveats' 'conveyancing Act 1919 S 88 B Instrument' 'removal of Caveats' 'ancillary Orders']
['equity' 'real Property' 'civil Procedure'] ['specific Performance' 'form of Orders' 'heads of Agreement' 'easements' 'caveats' 'conveyancing Act 1919 S 88 B Instrument' 'removal of Caveats' 'ancillary Orders']

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Procedural Posture

Equity Proceedings Concerning Specific Performance of Heads of Agreement to Settle Litigation and Grant an Easement / Post Appeal Remittal to Settle the Final Form of Orders, Including Removal of Caveats and Form of Settlement Deed and S 88 B Instrument

Legal Issues

  1. 1 ["Whether Nergl's caveats should be ordered to be removed from the Vella land immediately or after resolution of a disputed damages claim concerning alleged road damage." 'What terms of the Deed of Settlement and Release and the Conveyancing Act 1919, s 88B Instrument were required to give effect to specific performance of the Heads.' 'Whether proposed additional terms in the s 88B Instrument were required by the Heads or impermissibly added as reasonable but unagreed terms.']

Ratio Decidendi

The disputed damages claim about alleged road damage was factually and legally uncertain and did not justify delaying completion of the specific performance relief, registration of the Easement, or removal of the caveats. The caveats should be withdrawn upon execution of the Settlement Deed and s 88B Instrument and compliance with Order (6) of the principal judgment as explained. The s 88B Instrument should include only terms required by the Heads as construed by the Court, not additional restrictions or liabilities proposed by either party merely because they might be reasonable.

Court Disposition

Court settled the approach to instruments required to complete the remedy of specific performance and directed the parties to bring in short minutes of order to give effect to the reasons.

Orders

  • ["Direct the parties by 4pm on 4 November 2021 to bring in agreed short minutes of order to give effect to these reasons (and if not agreed, marked up short minutes showing the parties' differences)." 'Adjourn the proceedings to 9am on 5 November 2021 to make final orders, or orders for the further management of any...